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Hiscott v. Peters

August 16, 2001

GEORGE HISCOTT AND JUNE HISCOTT, PLAINTIFFS-APPELLEES
v.
ROSS PETERS, DEFENDANT-APPELLEE, (RONALD WEIDNER, INDIV., AND RONALD WEIDNER, INC., DEFENDANTS- APPELLANTS)



Appeal from the Circuit Court of Lake County. No. 98--L--701 Honorable Charles F. Scott, Judge, Presiding

The opinion of the court was delivered by: Justice Rapp

UNPUBLISHED

Defendants Ronald Weidner (Ronald Weidner or Mr. Weidner) and Ronald Weidner, Inc. (collectively Weidner), appeal from the judgment in favor of plaintiffs, George and June Hiscott, following a jury trial. It is the contention of Weidner that (1) the trial court erred in admitting the opinion testimony of a reconstruction expert; (2) the trial court erred in excluding circumstantial evidence that defendant Ross Peters was using his cellular telephone immediately prior to the accident; (3) the trial court erred in submitting itemized verdict forms allowing the jury to return separate damages for emotional distress; (4) the trial court erred in permitting the Hiscotts to amend their pleadings after judgment; (5) the jury's allocation of fault between the defendants was against the manifest weight of the evidence; and (6) the jury's award for future pain and suffering to June Hiscott was against the manifest weight of the evidence.

I. FACTS

The Hiscotts originally filed this action for personal injury in the circuit court of Cook County on June 17, 1998. On August 5, 1998, the case was transferred to Lake County. Peters also filed an action against Weidner seeking to recover for his own bodily injuries; that case was consolidated with this action but voluntarily dismissed shortly before trial.

On November 19, 1998, the Hiscotts filed their first amended complaint. Counts I and II alleged negligence against Weidner. Counts III and IV alleged negligence against Peters. The Hiscotts sought damages for their injuries, including emotional trauma.

Peters and Weidner filed contribution counterclaims against each other. Prior to trial, the trial court partially granted Weidner's motion in limine requesting the trial court to bar portions of the accident reconstruction opinion testimony of Robert Seyfried. The trial court barred any opinion testimony from Seyfried regarding the path of travel of Peters's vehicle and whether his vehicle went into a "yaw" or side-slip without a sufficient foundation. The trial court reserved its ruling on part of Peters's motion in limine as to the use of his cellular telephone at the time of the accident.

Trial began on March 20, 2000. Ronald Weidner testified as an adverse witness. On June 17, 1997, at approximately 1:20 p.m., Mr. Weidner was driving a red Dodge pickup truck northwest on Route 60/83. He had perceived a problem with the braking of the truck from the time he purchased it eight months earlier. According to Mr. Weidner, when he would slam on the brakes the vehicle pulled left or right. He took the vehicle to be repaired six or seven times, but he still thought there was a problem with the braking.

According to Mr. Weidner, the weather was clear and the roads were dry on the day of the accident, although the roads were "oily" from all the traffic. He was traveling northwest on Route 60/83, following a white Cadillac. The Cadillac was approximately 60 feet in front of him. The Cadillac then turned to the right, partially onto the shoulder, and braked, simultaneously. At that time, Mr. Weidner saw a large white van stopped in the northwest lane of travel. He saw a Lincoln about 220 feet ahead of him in the opposite lane of travel. When he realized that he was going to hit the van, Mr. Weidner decided to hit the rear left side of the van with the front passenger side of his truck. When he hit the brakes, his truck started to skid forward to the left. The impact pushed the front end of his truck about 12 to 18 inches over the center line. Mr. Weidner testified that a skid mark left by his truck showed it curling into the opposite lane of travel.

According to Mr. Weidner, the Lincoln was approximately 70 feet away when the impact occurred. He saw the Lincoln go past him, hit its brakes, and turn onto the gravel. The Lincoln then moved across the center line and hit the Hiscotts' vehicle head-on, completely within the northwest lane of travel.

Ross Peters testified that on June 17, 1997, at approximately 1:20 p.m., he was traveling south on Route 60/83 in his blue 1994 Lincoln. There was no traffic in front of him for at least 13 or 14 car lengths, when a red truck suddenly appeared before him, covering most of his lane of travel. Peters then turned his car to the right as hard as he could and hit the gravel shoulder. Peters did not recall any other events of the accident until after the impact. After the accident, Mr. Weidner told Peters that he hit the guy in front of him, went into Peters's lane of traffic, and that he was sorry.

On cross-examination, Peters could not recall if he applied his brakes when he saw the red truck entering his lane of traffic. Peters denied using a cellular telephone at the time of the accident, and the jury was instructed to disregard this testimony. Weidner's counsel made an offer of proof of Cellular One billing records to show that Peters used his cellular telephone for one minute between 1:14 p.m. and 1:15 p.m. and that he made a two-minute call to the same telephone number at 1:29 p.m. The trial court barred this evidence, finding that there was no direct evidence that Peters was using his cellular telephone at the time the accident occurred.

Peters's counsel requested the trial court to reconsider its ruling on Weidner's motion in limine concerning the opinion testimony of accident reconstructionist Robert Seyfried. The trial court reiterated that it was standing by its prior ruling.

Traffic accident reconstructionist Robert Seyfried then testified that he reviewed the traffic accident report, photographs of the accident scene, and the vehicles. Seyfried also reviewed the depositions of Mr. Weidner, Deputy Allan Burns, Charles Behrendt, and Peters. Seyfried visited the scene of the accident on October 11, 1999, more than two years after the accident, to become familiar with it. From the police report, he reviewed a number of measurements of skid marks left by the Weidner truck. He also reviewed a gouge mark in the pavement left by the impact of the Peters and Hiscott vehicles. According to Seyfried, Weidner's truck left 69 feet of skid marks. Seyfried concluded that 195 feet was required by Peters to make the maneuver he did at the time of the accident and that the total maneuver took a little more than three seconds. According to Seyfried, Peters's maneuvers were limited by friction between the roadway and shoulder surfaces and the tires of his vehicle. Seyfried stated that 176 feet would have been the minimum distance of making the steering maneuver. Seyfried opined that Peters had little less than a second to react to the Weidner truck coming into his lane and that Peters was reacting to an emergency situation. According to Seyfried, it would have taken approximately two-thirds of a second for Peters, traveling at 40 miles per hour, to steer his vehicle away from the Weidner truck and move onto the gravel shoulder.

Seyfried stated that once Peters was on the gravel shoulder he had to react to being on the gravel and steer back left to avoid going off the outside edge of the shoulder. In order to get back onto the road, Peters steered back to the left very quickly. In his opinion, this would likely have caused the vehicle to "yaw," or slide partially sideways.

On cross-examination, Seyfried admitted that there were no "yaw" marks noted or measured by the police or noted on the police report, nor did the police report indicate where Peters went onto the shoulder or where he returned to the road. Additionally, Seyfried admitted that there was no physical evidence of Peters braking his vehicle. Seyfried also admitted that it was pure speculation as to when Peters first saw Weidner's truck, how long it took Peters to react, where Peters left the roadway, or where Peters returned to the roadway.

Dr. Thomas Baier testified via video evidence deposition concerning the injuries sustained by the Hiscotts. Dr. Baier did not testify concerning any emotional distress suffered by the Hiscotts.

Lake County sheriff's deputy Allan Burns testified that he investigated the accident. The call came in at 1:20 p.m., and Burns was dispatched at 1:21 p.m. According to Burns, it was a dry, sunny day. The roadway was not oily or slick. Ronald Weidner told Burns that he was westbound on Route 60/83; that there was a white Cadillac in front of him; that the Cadillac had swerved to the right, onto the shoulder, to go around the vehicles; that he did not realize that the other traffic was stopped; and that he was unable to stop before making contact with the white van. Peters told Burns that he saw the accident with the red truck ahead and that he swerved to the right onto the gravel shoulder, lost control of his vehicle, came across the eastbound lane of traffic, went into the westbound lane of traffic, and struck the white vehicle head-on.

According to Burns, each lane was approximately 12 feet wide, with shoulders approximately 7½ feet wide. The skid marks left by Weidner's truck measured 93 feet 1 inch, and veered to the left, with the front left tire coming to a stop approximately 12 inches into the oncoming lane of traffic. Burns stated that the overhang of the truck would have extended into the oncoming lane of traffic another six to eight inches beyond the tire. There was no evidence that Weidner's vehicle had gone fully into the oncoming lane of traffic. Burns stated that there was nothing obstructing Peters's view.

On cross-examination, Burns testified that Peters's vehicle was approximately 6½ feet wide and that if Weidner's vehicle was 1½ feet over the center line, Peters would have had approximately 10½ feet of road surface to travel on. On further cross-examination, Burns admitted that there was a tree trunk in close proximity to the shoulder where Peters left the roadway.

June Hiscott recalled that on the day of the accident she saw a car to her left careening and then the crash occurred and she heard glass break. She next recalled waking up in an ambulance and later waking up in the hospital. Mrs. Hiscott testified concerning her injuries and the impact that the accident has had on her life. Mrs. Hiscott incurred $87,757 in medical expenses as a result of the accident, of which $79,757 have been paid.

George Hiscott testified that at the time of the accident he was driving a 1984 Chrysler Park Avenue. Mr. Hiscott recalled that, with a second's notice, he saw a car heading out of the gravel across the road into his path. He braked and locked the wheels and braced himself. Mr. Hiscott testified concerning his injuries and the impact that the accident has had on his and Mrs. Hiscott's lives. Mr. Hiscott incurred $24,800 in medical expenses as a result of the accident.

Charles Behrendt testified by video evidence deposition taken on March 16, 2000. Behrendt testified that he is a letter carrier for the United States Postal Service in Mundelein. On June 17, 1997, Behrendt was heading north, delivering mail to 26321 Route 83. It was a clear and sunny day. Behrendt had delivered this mail route for nearly 15 years. According to Behrendt, the street ran generally northwest and southeast, with a single lane in each direction and a six- or seven-foot-wide shoulder on each side. The speed limit was 40 or 45 miles per hour.

Behrendt was stopped on the shoulder approximately 20 yards south of Hickory Street on the east side of Route 60/83, delivering mail to a mailbox. As he looked north on Route 83, he saw several vehicles stopped. The first vehicle, in a line of six or seven vehicles, was making a left turn onto Walnut Street. The last vehicle in line was a white or gold cargo van.

After making his mail delivery, Behrendt looked out his side view mirror and saw a white Cadillac pass. A second or two later, a red truck passed. He estimated that the vehicles were traveling at the speed limit, with the red truck trailing the Cadillac by two car lengths. The Cadillac's driver hit his brakes when he was only one or two car lengths from the rear of the van, swerved, and went part way onto the shoulder, leaving part of the car on the roadway. When the Cadillac swerved around the van, it did not collide with it, but stopped at an angle, with the front end in the gravel and three or four feet of the back end on the roadway. The driver of the red truck hit his brakes at about the same time as the Cadillac. The Cadillac left the scene.

According to Behrendt, it appeared that the front of the red truck collided at a slight angle with the rear of the van, pushing the van forward into a green Jeep. The red truck moved or "bounced" to the left, ...


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